Bombers face tough challenge in Federal Court

The sweeping nature of the ASADA Act makes Essendon's task of claiming the drug body acted beyond its powers in its joint investigation with the AFL a difficult argument to mount in its Federal Court injunction application, according to lawyers.

The Bombers have claimed the Australian Sports Anti-Doping Authority acted outside its powers - ultra vires - and in breach of the act in disclosing information it received in the investigation to an unauthorised person, namely the AFL.

In the application lodged with the Federal Court, lawyers for Essendon and James Hird claim that under the ASADA Act, the authority had no power to conduct a joint investigation.

ASADA would most likely rely on a section of the act that grants ASADA the power to do "all things necessary or convenient" to uphold the National Anti-Doping scheme.

"Given the breadth and generality of ASADA's powers under the ASADA Act, it is hard to see how ASADA has acted beyond its statutory powers so long as its conduct is consistent with its overall purpose to prevent drugs or doping methods in sport," lawyer and blogger, Natalie Hickey, a former partner at King & Wood Mallesons wrote on sociallitigator.com.

Under the ASADA regulations, sporting bodies are required to uphold the National Anti-Doping scheme and co-operate with ASADA. The regulations also state ASADA is able to use information given to it by a sports body - for example the AFL - as if that information had been obtained by ASADA.

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Essendon's lawyers argue in the injunction application - which will be heard next week - that because ASADA could only disclose information to "entrusted parties", it acted outside its powers with a joint investigation because the AFL was not an ''entrusted party''. Consequently, the club argues that any information the joint investigation uncovered should not be allowed to be used.

The disclosure provisions in the act enable ASADA to share information with the AFL on the basis of investigating a possible doping breach. The AFL later laid charges of bringing the game into disrepute, not doping.

Under the act, ASADA is entitled to request any information the AFL obtains in any interviews with players about possible doping breaches.

"The breach of confidentiality is one point, the ultra vires is another,'' Hickey said. "The ultra vires seeks to have the entire investigation ruled out, the confidentiality provision would not.''

Another lawyer observed: "The fact Essendon participated in the investigation for over a year without apparently reserving their right and only acted to injunct it when action was being taken against them would seem a fairly significant hurdle."

Hickey said that even if the court found ASADA had acted ultra vires, it would be a second question for the court to decide whether this ruled the entire investigation null and void.

"It is by no means certain that Essendon and James Hird could prove that ASADA has acted with such a want of jurisdiction that this drastic outcome should occur," she said.